Mexico and Argentina Enact Drug Decriminalization, US Drug
Policy Increasingly Out of Step

In the last eight days, the decriminalization of drug possession
has gone into effect for 150 million Latin Americans. Last Thursday,
as part of a broader bill, Mexico (pop. 110 million) decriminalized
the possession of small amounts of all drugs through the legislative
process. Four days later, the Argentine Supreme Court declared
unconstitutional that country's law criminalizing drug possession.
While the Argentine case involved marijuana possession, the ruling
clears the way for the government to draft a new law decriminalizing
all drug possession.

The shift in policies toward drug users in the two countries
is a dramatic indication of the seismic shift in drug policy
already well underway in Latin America. Colombia's high court
declared the law against drug possession unconstitutional in
1994. Brazil has had a version of decriminalization since 2006
-- users cannot be imprisoned, but can be forced into treatment,
educational programs, or community service -- and Uruguay now
allows judges to determine if someone in possession of drugs
intended to use them or sell and to act accordingly. Movement
toward decriminalization is also underway in Ecuador.

That reformist zeitgeist is perhaps best encapsulated in the
Latin
American Commission on Drugs and Democracy, led by former
presidents Cesar Gaviria of Colombia, Ernesto Zedillo of Mexico,
and Enrique Cardoso of Brazil. In its report earlier this year,
Drugs
and Democracy: Toward a Paradigm Shift, the commission called
for decriminalization of drug use, especially marijuana, and
treating drug use as a public health -- not a law enforcement
-- issue. A similar commission got underway in Brazil last week.

"Decriminalization permits a distinction between users
and drug traffickers," said John Walsh of the Washington Office on Latin America. "This
allows governments to focus their efforts in reducing the terrible
harms caused by the big criminal networks and the violence related
to the illicit traffic, instead of repressing users and small-scale
dealers."

"What's happened in Mexico and now Argentina is very
consistent with the broader trend in Europe and Latin America
in terms of decriminalizing small amounts of drugs and promoting
alternatives to incarceration and a public health approach for
people struggling with drug addiction," said Ethan Nadelmann,
executive director of the Drug Policy Alliance. "The decision
in Argentina reminds me of similar rulings in Colombia more than
a decade ago and in Germany before that, and, more generally,
what's been going on in the Netherlands, Portugal, and Switzerland.
In some cases, there is a legal or constitutional notion about
personal sovereignty or autonomy, but there is also a recognition
of the failures of the drug war approach vis a vis low-level
offenders. There is a kind of human rights element that you see
popping up in both contexts," Nadelmann said.

But the devil is in the details. Mexico's decriminalization,
for example, comes as part of a broader law aimed at "narcomenudeo,"
or small-scale drug dealing. In addition to decriminalizing drug
possession, the law for the first time allows state and local
authorities to arrest and prosecute drug offenders. Previously,
such powers had been the sole province of federal authorities.
The new law also allows police to make undercover drug buys,
a power they did not previously possess. (To read the full text
of the law in Spanish, go to page 83 of the Official Daily.)

Under the Mexican law, the amounts of various drugs decriminalized
are as follows:

opium -- 2 grams

cocaine -- 1/2 gram

heroin -- 1/10 gram

marijuana -- 5 grams

LSD -- 150 micrograms

methamphetamine -- 1/5 gram

ecstasy -- 1/5 gram

For Mexican drug reformers, the law is definitely a mixed
bag. The Collective
for an Integral Drug Policy, a Mexico City-based reform think-tank,
felt compelled to note that while "the law represents certain
advances... it could have very negative consequences for the
country" because the public health and human rights perspectives
are not implicated strongly enough in it.

While the collective applauded the law's distinctions between
consumer, addict, and criminal; its rejection of forced drug
treatment, its lip service to harm reduction, and its recognition
of the traditional, ritual use of some substances, it challenged
other aspects of the law. "It focuses on intensifying a
military and police strategy that has proven to be a failure,"
the collective said, alluding to the more than 12,000 people
killed in prohibition-related violence since President Felipe
Calderon unleashed the military against the cartels in December
2006.

"The law will criminalize a vast group of people who
make a living off the small-time dealing of drugs, but who in
reality do not consciously form part of organized crime,"
but who are instead merely trying to make a living, the collective
argued. "Imprisoning them will not diminish the supply of
drugs on the street, nor will it improve public security, yet
it will justify the war on drugs, since the government will be
able to boast of the number of people incarcerated with this
policy."

"Mexican decriminalization will have no impact whatsoever
on the broader issues of drug trafficking and violence,"
agreed Nadelmann. "From the legal and institutional perspective,
this is very, very significant, but in terms of actual impact
on the ground in Mexico, that remains to be seen."

The collective also criticized the law's provision allowing
police to make drug buys to nab small-time dealers and warned
that the small quantities of drugs decriminalized "are not
realistic" and will as a consequence lead to "a significant
increase in corruption and extortion of consumers by police forces."

University of Texas-El Paso anthropologist Howard Campbell,
who has studied the street drug scene across the river in Ciudad
Juarez, was more cynical. "It was a good move by the government
to make that distinction between users and traffickers, but I'm
not sure what the effects of the law will be," he said.
"All over Mexico, cops prey on junkies, and one effect of
this might be to give low-down junkies a bit of a break from
the cops. On the other hand, street-level drug dealing is often
controlled by the cops... but if the cops are corrupt and in
control, it doesn't really matter what the law says."

Campbell also doubted the new law would have much effect in
reducing the prohibition-related violence. "I don't think
it will have much initial impact, but still, the overarching
importance of this law is symbolic. It shows that governments
can revamp their policies, not just keep on working with failed
ones," he said.

In Argentina, the situation is less dire and the reform is
less ambiguous. On Tuesday, the Argentine Supreme Court, ratifying
a series of lower court decisions in recent years, declared that
the section of the country's drug law that criminalizes drug
possession is unconstitutional. While the ruling referred only
to marijuana possession, the portion of the law it threw out
makes no distinction among drugs.

The decision came in the Arriola case, in which a group of young men
from the provincial city of Rosario were each caught with small
amounts of marijuana, arrested, and convicted. Under Argentina's
1989 drug law, they faced up to two years in prison.

But imprisoning people absent harm to others violated constitutional
protections, a unanimous court held. "Each individual adult
is responsible for making decisions freely about their desired
lifestyle without state interference," their ruling said.
"Private conduct is allowed unless it constitutes a real
danger or causes damage to property or the rights of others.
The state cannot establish morality."

"It is significant that the ruling was unanimous,"
said Martin Jelsma, coordinator of the Drugs and Democracy program
at the Transnational
Institute, which has worked closely with Latin American activists
and politicians on drug reform issues. "It confirms the
paradigm shift visible throughout the continent, which recognizes
that drug use should be treated as a public health matter instead
of, as in the past, when all involved, including users, were
seen as criminals."

That paradigm shift has also occurred within the current Argentine
government of President Cristina Kirchner, which favors a public
health approach to drug use. The government has been waiting
on this decision before moving forward with a bill that would
decriminalize possession of small quantities of all drugs.

"The declaration of the unconstitutionality of the application
of the drug law for marijuana possession is a great advance since
it eliminates the repressive arm from a problem that should be
confronted with public health policies," said Intercambios, an Argentine harm reduction
organization. "Whatever retreat in the application of the
criminal law in relation to drug users is positive; not only
to stop criminalizing and stigmatizing users, but to permit the
advance of educational, social, and health responses that are
appropriate for this phenomenon."

Some Argentine harm reductionists warned that while the ruling
was of transcendent importance, its real impact would be measured
by its effect on the policies of the state. "In the vertical
sense, it should oblige all the judges in the country to take
heed of this declaration of the unconstitutionality of punishing
drug possession for personal use," said Silvia Inchaurraga
of the Argentine
Harm Reduction Association (ARDA). "In the horizontal
sense, it should force all the agencies of the state involved
in drug policy to redefine their involvement to guarantee that
they do not fail to comply with international human rights treaties
subscribed to by the country," she added.

For the Argentine section of the global cannabis nation, it
was a happy day. "Wow! This feels like honest good vibrations
from the Supreme Court and the government," said Argentine
marijuana activist Mike Bifari. "They really do have this
new policy of generally being more tolerant and talking about
human rights in the drug issue nationally and internationally,
instead of that tired old war on drugs."

The Supreme Court decision will pave the way to full decriminalization,
he said. "Although this was a marijuana case, the current
law is about all types of drugs," said Bifari. "Now
we have to wait for the government's scientific committee to
come up with a draft of a new drug law, and that will be the
government's bill in the congress. We think there are going to
be lot of media debates and lots of discussion, and what we will
try to do is to occupy all the different cultural spaces and
try to advance on issues such as access and medical marijuana."

And so the wheel turns, and the United States and its hard-line
drug policies are increasingly isolated in the hemisphere. As
anthropologist Campbell noted, "This is happening all over
Latin America. You'd think we might be able to do it here, too."

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